Last updated on November 5th, 2020 at 04:05 pm
When all attempts to solve a claim against a foreign trader have failed, a further option available to the consumer is the European Small Claims Procedure. This procedure was introduced by means of Regulation No. 861/2007. The aim of this procedure is to simplify cross-border small claims litigation while reducing the costs. The procedure applies in cross-border litigation to civil and commercial matters for claims up to €5000. There is no need for legal representation in order to follow this procedure.
To what kind of claims the ESCP applies?
The ESCP applies to business and consumer claims, which claim however must not exceed €5000. Non-monetary claims can also be made under the procedure.
Starting the procedure:
The competent Court in Malta to determine cases filed under the ESCP is the Small Claims Tribunal. There are mainly four forms involved when filing the ESCP, which are the following: Form A: The Claim Form Form B: Request by the Court or Tribunal to Complete and/or Rectify the Claim Form Form C: The Answer Form Form D: Certificate Concerning a Judgment in the European Small Claims Procedure These may also be downloaded from the following site https://e-justice.europa.eu/content_small_claims_forms-177-en.do The procedure is a written one and it will be conducted mainly through correspondence although the Court may request an oral hearing if it deems necessary. The procedure starts by the filing of form A. The form must be submitted in the language or one of the official languages of the Court were the claim is submitted. Therefore, when submitting a claim before the Small Claims Tribunal it must be submitted in the Maltese language, together with a form in a language which the trader or addressee of the Form understands. The Small Claims Tribunal in Malta requests that two forms in each language is submitted to the Registrar. In Form A the applicant needs to give details of what his claim is. It must be specified also whether the applicant’s claim is a monetary or a non-monetary claim, for instance a claim for repair or replacement of goods or for the provision of a service. In both cases, the claim must not exceed €5000. Together with the details of the claim, the applicant must state the reasons which led to the claim and must also attach any supporting evidence and documents with the claim form. In the claim form the applicant must also give some basic details such as the personal details and details of the addressee. The applicant must state also on which grounds he or she considers the Court to have jurisdiction. Consumers in Malta having a claim against a trader in another Member State can indicate that the Court has jurisdiction on the basis of the ‘domicile’ (permanent residence) of the consumer. Since for filing a ESCP the claim must be of a cross-border nature, in the application the place where the trader or addressee is situated must also be indicated in the form. In the event that the claimant fails to give sufficient details in the claim form, the Court will send Form B to the applicant to complete or to rectify the claim form. The applicant will be given a deadline within which he can complete or correct his claim. Once the form is properly filled in, the Court will send a copy to the trader or defendant together with a reply form, Form C within 14 days. The trader will be given 30 days within which to prepare and return his response. If the trader decides to dispute the claim, the applicant receives a copy of the reply.
After having received all the required information the judge will consider the claim and will give a decision within 30 days. A copy of the decision will be sent to both parties by post.
Are there any costs involved?
Yes, the tariff to be paid is the same that applies to a case instituted in Malta before the Small Claims Tribunal. Filing Form A costs from €40 and €7.20 for any service of documents to the other party.
Recognition and Enforcement of Judgments
A judgment given through the ESCP in a Member State will be recognised and enforced in another Member State. However the enforcement procedure is regulated by the procedural laws of the Member State where enforcement is sought. To this affect at the request of one of the parties the Court which gave the judgment under the ESCP will issue a certificate concerning a judgment in the European Small Claims Procedure using Form D.
The difference between the European Small Claims Procedure and the Consumer Claims Tribunal
You may have recourse to the European Small Claims Procedure if you have a dispute with a trader based in another EU Member State and the case is heard in the building of the Court of Justice (Small Claims Tribunal). On the other hand, those consumers resident In Malta who have a dispute with a trader based in Malta may file a claim against him at the Consumer Claims Tribunal situated at Consumer House, 47A, South Street , Valletta. This Tribunal hears only claims of consumers resident in Malta against traders operating in Malta. You may file a claim at the Tribunal after a mediation case has been opened via the Office for Consumer Affairs within the Malta Competition and Consumer Affairs Authority or a registered consumers’ association and no agreement has been reached.